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TMI Blog2002 (7) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... rtment, challenging the correctness of the impugned order, mainly made three submissions. Firstly, he submitted that the order impugned is liable to be quashed on the ground that the Appellate Tribunal had no jurisdiction to pass the impugned order in the purported exercise of power conferred on it under sub-section (2) of section 254 of the Income-tax Act, 1961 (hereinafter referred to as "the Act"). Secondly, he submitted that the said order suffers from errors apparent on the face of the record inasmuch as the said order came to be passed in total disregard of the materials on record. He made several incidental submissions elaborating this submission. Finally, he submitted that since in the order impugned several unwarranted and uncalled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his court under section 260A of the Act? (ii) Whether this is a fit case for this court to examine the correctness of the impugned order in exercise of the power conferred on it under articles 226 and 227 of the Constitution of India, even if the right of appeal is available?" Before I proceed to consider the questions that would arise for consideration in this petition, it will be useful to refer to section 260A of the Act which reads as follows: "260A. (1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal, if the High Court is satisfied that the case involves a substantial question of law. (2) The Chief Commissioner or the Commissioner or an assessee aggrieved by any order passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Code of Civil Procedure, 1908 (5 of 1908), relating to appeals to the High Court shall, as far as may be, apply in the case of appeals under this section." Regarding question No. 1: Sub-section (1) of section 260A of the Act extracted above in unmistakable terms states that an appeal would lie to this court "from every order passed in appeal by the Appellate Tribunal". There is no dispute that the order impugned is passed by the Appellate Tribunal. However, the area of controversy is as to whether the impugned order is an order passed in an appeal by the Appellate Tribunal; or it has to be treated as an order made by the Appellate Tribunal in exercise of its original jurisdiction under sub-section (2) of section 254 of the Act. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llate Tribunal on an application filed seeking rectification or annulment of the order made in the appeal, the order impugned must be treated as an order made in the appeal. Once it is held that the order impugned came to be made in an appeal, section 260A of the Act is attracted and an appeal would lie to this court. It is necessary to point out that if two views are possible on an interpretation of the provision which provides for a right of appeal, it is always desirable to take the view not to place a restricted meaning to such a provision and take away the right of appeal provided to a party. Such an approach would, in my view, always be in the interest of parties and justice. I am also in my above view, supported by the judgment of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his court could interfere against the said orders in exercise of its powers under articles 226 and 227 of the Constitution of India, even if a right of appeal is provided against such orders. But the question is, when a right of appeal is provided before the Division Bench of this court on a substantial question of law where the scope of interference is wider in appeal than the one by this court in exercise of its writ jurisdiction, whether it is appropriate for this court to proceed to examine the correctness of such orders? As noticed by me earlier, in my view, when an alternative remedy of right of appeal is provided to this court and that too before a Division Bench of this court, it will be totally inappropriate for this court to exerc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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